STRICT LIABILITY COMES OF AGE

IN OHIO: ALMOST

STEPHEN J. WERBER*

N JUNE 1977 the Ohio Supreme Court decided Temple v. Wean United,Inc.,' and adopted the doctrine of strict liability for product liability litiga-

tion, thereby following a national trend. Earlier decisions had discussed atheory similar to strict liability and had engendered considerable confusionas to the substantive theory supporting possible recovery.2 Temple apparentlyended the confusion.

The case arose out of an industrial accident in which a power presswas accidentally activated, causing the severing of plaintiff's arms. Suit wasfiled against the manufacturer of the press, with the primary issue beingwhether the machine was defective at the time of manufacture. The courtseized this opportunity to elucidate its theory of law and clarify the intentof its prior rulings by announcing a clear standard. However, a portion ofthe syllabus and opinion' limited the definition of "defect" so as to poten-tially place an unnecessary restraint on the application of the strict liabilitydoctrine. This restraint is inconsistent with the historical roots of thedoctrine.

By the early 1960's courts in the United States had become awarethat traditional theories of negligence and warranty did not adequately pro-tect the user of various products other than drugs and cosmetics. Thus,the California Supreme Court in the landmark decision of Greenman v. YubaPower Products, Inc.' applied the doctrine of strict liability to permitrecovery in an action for injuries caused by an allegedly defective powertool. The plaintiff was injured when a piece of wood flew out of a "Shop-smith" (a combination power tool incorporating elements of saw, drill and*B.A., Adelphi University; J.D., Cornell University; LL.M., New York University; Member,New York Bar; Professor of Law, Cleveland State University, Cleveland-Marshall Collegeof Law. The author wishes to express his gratitude to James Szaller of the Ohio Bar andCarole Roth, a third year student at the College of Law, for their assistance in the prepa-ration of this article.1 50 Ohio St. 2d 317, 364 N.E.2d 267 (1977).2 E.g., McDonald v. Ford Motor Co., 42 Ohio St. 2d 8, 326 N.E.2d 252 (1975); Gastv. Sears Roebuck and Co., 39 Ohio St. 2d 29,313 N.E.2d 831 (1974); State Auto Mutual Ins. Co.v. Chrysler Corp., 36 Ohio St. 2d 151, 304 N.E.2d 891 (1973); United States Fidelity &Guaranty Co. v. Truck & Concrete Equip. Co., 21 Ohio St. 2d 244, 257 N.E.2d 380 (1970);Lonzrick v. Republic Steel Corp., 6 Ohio St. 2d 227, 218 N.E.2d 185 (1966).. 50 Ohio St. 2d at 318, 364 N.E.2d at 267 (syllabus paragraph 5); 50 Ohio St. 2d at326-27, 364 N.E.2d at 273.4 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963).

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wood lathe) and struck him in the head. The trial court ruled that therewas no evidence that the retailer was negligent or had breached an expresswarranty. It further ruled that the manufacturer was not liable for anyimplied warranty. Only a limited number of issues were presented to thejury: implied warranty as to the retailer, negligence, and express warrantyas to the manufacturer. On appeal the court reversed and its opinion ex-tended the manufacturer's liability by applying the doctrine of strict liability.The policy reasons expressed for this decision focused largely on the conceptof risk allocation, and the court determined that the risk could be better borneby manufacturers.'

The impact of Greenman gave added impetus to the already wellreceived decision of the New Jersey Supreme Court in Henningsen v. Bloom-field Motors, Inc.,' so that in a relatively short time the doctrine of strictliability became the majority view in American jurisdictions.' The singlemost comprehensive statement of the doctrine is set forth in section 402Aof the Restatement (Second) of Torts.'

Despite these precedents and the fact that a lucid definition of the

The purpose of such liability is to insure that the costs of injuries resulting from defectiveproducts are borne by the manufacturers that put such products on the market rather thanby the injured persons who are powerless to protect themselves. Sales warranties servethis purpose fitfully at best.. . it should not be controlling whether plaintiff selected themachine because of the statements in the brochure, or because of the machine's ownappearance of excellence that belied the defect lurking beneath the surface, or because hemerely assumed that it would safely do the jobs it was built to do.

Id. at 61, 377 P.2d at 901, 27 Cal. Rptr. at 701.G 32 N.J. 358, 161 A.2d 69 (1960). Claus Henningsen signed a purchase order for a new

automobile on May 7, 1955 and took delivery on May 9. The various documents whichaccompanied the sale included a disclaimer of liability. On May 19, the co-plaintiff (Claus'wife) was operating the vehicle when something allegedly snapped causing her to lose controlof the vehicle and crash. The trial court determined that there was no evidence to supporta prima facie case of negligence, partly due to the fact that there was no expert testimony,and permitted the jury to consider only the warranty cause of action. Defendants appealedfrom the resulting plaintiff's verdict. The main issues on appeal focused on a lack of privityand the disclaimer clause. The affirming decision became a foundation for the subsequentdevelopment of strict liability in tort, not because it adopted the doctrine, but because itabolished the need for privity in contract, demolished the disclaimer clause, and helped

establish the policy reasons which justify strict liability. Since this decision, courts facingsimilar issues have almost consistently abolished the privity requirement or adopted strictliability in tort. In a sense this decision is the watershed from which Greenman flowed. Theprivity requirement was further eroded with the acceptance of Uniform Commercial Code,section 2-318. Among the large number of casenotes analyzing this decision, the followingare illustrative: Note, 48 CALIF. L. REV. 873 (1960); Note, 29 FOPDHAM L. REV. 183 (1960);Note, 74 HAjv. L. REV. 630 (1961); Note, 59 MICH. L. REV. 467 (1961); Note, 109 U. PA.

L. REV. 453 (1961).7 See Chart of Strict Liability, [1977] PROD. LIAB. REP. (CCH) 4060.

8 RESTATEMENT (SECOND) OF TORTS § 402A (1965) reads:(1) One who sells any product in a defective condition unreasonably dangerous to theuser or consumer or to his property is subject to liability for physical harm therebycaused to the ultimate user or consumer, or to his property, if(a) the seller is engaged in the business of selling such a product, and

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doctrine was available to it, the Ohio Supreme Court did not adopt adoctrine analogous to strict liability until 1966.1 The year before, in Inglissv. American Motors Corp.,10 the court set the stage by allowing recoveryin a tort action premised upon express warranty, despite the absence ofprivity. However, when the time came, the court did not define its doctrinein terms of existing precedents but rather established in Lonzrick v. Re-public Steel Corp." the somewhat unique standard of:

[a]n action in tort which is based upon the breach of a duty assumedby the manufacturer-seller of a product. This duty is assumed by themanufacturer by reason of his implicit representation of good andmerchantable quality and fitness for intended use when he sells theproduct. This duty is breached when a defect in the product causes thecollapse of the product and is the direct and proximate cause of injuryto a person whose presence the defendant could reasonably anticipate. 2

The plaintiff in Lonzrick had made no allegations of negligence andthe court ruled that an action in contract was not proper since there wasno contractual relationship between the parties. Although the court did notso state, it is evident that despite its decision in Ingliss, the court was stillconcerned with the privity question. The court was thus faced with a needto permit recovery on some theory other than negligence or contract anddid so in a fashion which, in actuality, combined a "tort" element, despitethe failure to allege negligence, and a "contract-warranty" element, despitethe absence of a contractual relationship. The court termed this standard"an action in tort for breach of an implied warranty.' 3

As to defenses, the parallel to traditional strict liability is highly visibleas the court ruled that assumption of the risk was a valid defense to thisnew concept, but no mention of contributory negligence was made." Thismakes eminent good sense as the doctrine approved did not require ashowing of negligence. It would have been illogical to permit a contributory

(b) it is expected to and does reach the user or consumer without substantial changein the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although(a) the seller has exercised all possible care in the preparation and sale of his product,

and(b) the user or consumer has not bought the product from or entered into any con-

tractual relation with the seller.

9See Lonzrick v. Republic Steel Corp., 6 Ohio St. 2d 227, 218 N.E.2d 185 (1966).10 3 Ohio St. 2d 132, 209 N.E.2d 583 (1965). See also Rogers v. Toni Home Permanent Co.,167 Ohio St. 244, 147 N.E.2d 612 (1958).11 6 Ohio St. 2d 227, 218 N.E.2d 185 (1966).12 Id. at 230, 218 N.E.2d at 188.

a3 Id. at 235, 218 N.E.2d at 191.14/d. at 237, 218 N.E.2d at 193.

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negligence defense. But since assumption of the risk is available in any

tort claim, it can properly be considered in relation to the Ohio versionof strict liability.

For most purposes it was clear that the decision contained a convoluted

definition and application of the doctrine of strict liability in tort which

the dissenting opinion recognized.1" However, the court continued to adhere

to its strained definition, thus inviting problems in terms of the application

of the statute of limitations as well as the possibility of exemplary damages. 6

In 1970 the court reiterated its position in United States Fidelity and Guaranty

Co. v. Truck and Concrete Equipment Co., declaring:

[T]he plaintiff in a products liability case is not restricted to prosecutinghis action on the basis of negligence alone but may proceed in an

action in tort based upon the theory of implied warranty, notwith-standing that there is no contractual relationship between the plaintiffand the defendant."

15 Chief Justice Taft stated in his dissenting opinion:

The Court of Appeals recognized that "use of the word 'warranty' is probably improper"in explaining what this court is doing in the instant case, and that what it is reallydoing is recognizing a cause of action for "strict tort liability."Quite obviously, as is apparent from the authorities cited, the legal conclusion set forthin paragraph two of the syllabus represents a somewhat disguised statement of what isusually referred to as the doctrine of "strict liability."

6 Ohio St. 2d at 245, 218 N.E.2d at 197 (citations omitted).

16 The potential conflict as to the statute of limitations is between OHIO REV. CODE ANN.

§ 2305.10 (Page 1976) (two years from date of injury in personal injury cases) and OHIoREv. CODE ANN. § 1302.98 (Page 1976) (UCC breach of contract actions' four year provi-sion running from date of accrual, which is defined as delivery or tender date except asmodified in connection with specific future warranties). Thus, if strict liability is analogizedto the contract action, it is possible to bar the action before the injury occurs. On the otherhand, if the analogy is negligence, no such bar is possible. Either analogy is proper underOhio decisions prior to 1977. The federal courts, when interpreting Ohio law, have utilizedthe personal injury limitation period. Mahalsky v. Salem Tool Co., 461 F.2d 581 (6th Cir.1972). Accord, Lee v. Wright Tool & Forge Co., 48 Ohio App. 2d 148, 356 N.E.2d 303(1975). Such an interpretation appears to be consistent with United States Fidelity &Guaranty Co. v. Truck & Concrete Equip. Co., 21 Ohio St. 2d 244, 257 N.E.2d 380 (1970).Cf. Val Decker Packing Co. v. Corn Products Sales Co., 411 F.2d 850 (6th Cir. 1969),which applied the contract statute.

The potential conflict as to exemplary damages arises from the fact that such damagesare normally awarded only in instances of outrageous or malicious conduct, but the conductof the manufacturer (in this sense) is largely irrelevant to a claim premised upon strictliability. Again, the result will depend upon whether the strict liability case is more closelyanalogous to negligence or warranty. Those few cases relying on Ohio law which havereviewed the issue have failed to make the analysis necessary for a clear understanding andinstead assume that the question is to be decided on the tort analogy. Gillham v. AdmiralCorp., 523 F.2d 102 (6th Cir. 1975), cert. denied, 424 U.S. 913 (1976); Drayton v. JiffeeChemical Corp., 395 F. Supp. 1081 (N.D. Ohio 1975). A more detailed analysis is seen inG. D. Searle & Co. v. Superior Court, Sacramento County, 49 Cal. App. 3d 22, 122 Cal.Rptr. 218 (1975).17 21 Ohio St, 2d 244, 251, 257 N.E. 2d 380, 384 (1970).

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Although some members of the court, as evidenced by the dissentin Lonzrick and at least one appellate court opinion," recognized the ob-vious, the majority of the court retained its obscure position in State AutoMutual Insurance Co. v. Chrysler Corp.9 Here it became almost painfullyclear to virtually everyone except the writers of the opinion that Ohio hadadopted strict liability. The opinion delineated the elements necessary toestablish a cause of action for strict liability in warranty as follows:

In cases involving strict liability, the theory of plaintiff's case, proofof negligence is not required, and the doctrine of res ipsa loquituris applicable only insofar as it allows a jury to infer negligence oncea plaintiff has met his burden of proof. That burden of proof, asstated by this court ... consists of plaintiff alleging and proving, bya preponderance of the evidence, that: (1) there was, in fact, a defectin the product manufactured and sold by the defendant; (2) suchdefect existed at the time the product left the hands of the defendant;and (3) the defect was the direct and proximate cause of the plaintiff'sinjuries or loss.2"

The concept of strict liability in tort, though clarified in terms of acceptanceby use of these three elements, was obfuscated by the court's reference tothe doctrine of res ipsa loquitur. Under the facts of the case it is apparentthat the court was attempting to indicate that a negligence action premisedon res ipsa would not be accepted.21

18 Groves v. Phillips Petroleum Co., 22 Ohio App. 2d 25, 257 N.E.2d 759 (1969). But seeMielke v. Singara Grotto, Inc., [1975] PROD. LIAB. REP. (CCH) 7663 (Ohio App. 1975)(implied warranty in tort).19 36 Ohio St. 2d 151, 304 N.E.2d 891 (1973).20 Id. at 156, 304 N.E.2d at 894 (citations omitted). A comparison of the elements set forthin the Restatement definition of strict liability in tort with those established in State Autounderscores the correlation:

State Auto Mutual Ins. RESTATEMENT (SECOND) § 402AA defect in the product manufactured sells a product in a defective conditionand sold ... unreasonably dangerous...such defect existed at the time the prod- it... does reach the user or consumeruct left the hands of the defendant ... without substantial change...the defect was the direct and proximate is subject to liability for physical harmcause of the plaintiff's injuries or loss ... thereby caused...

See 36 Ohio St. 2d 151, 304 N.E.2d 891 (1973); RESTATEMENT (SEcOND) OF TORTS, §402A, Comment n (1965).21Negligence may be proven by direct or circumstantial evidence. The usual productliability case is premised upon direct evidence coupled with circumstantial evidence inthe field of expert testimony, especially as it relates to accident reconstruction includingproof that an alleged defect was the cause of the injury preceding event. Res ipsais a form of circumstantial evidence which, when available, is of considerable assistance tothe plaintiff. The essential elements necessary to bring the concept into play are generallyviewed as: (1) the event is of a kind which would not occur in the absence of negligence,(2) the event was caused by an instrumentality in the exclusive control of the defendantand (3) the plaintiff in no way contributed to the occurrence of the event or harm. Theseelements can rarely be met in a product case. Where the elements are present it is possiblefor a jury to infer negligence and thus to find for the plaintiff even in the absence of addi-tional direct evidence or expert testimony.

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The court's absolute confusion is perhaps best illustrated in Gast v.Sears Roebuck and Co." The catalyst for this decision was a fire allegedlycaused by a defective television set. The court intelligently specified thefactors which necessitated imposition of liability on grounds other thannegligence and warranty, but stubbornly insisted that the doctrine to beutilized was something other than strict liability in tort, even though thatphrase was specifically mentioned:

In the usual products liability case users of products need not showthat the manufacturer was negligent. Courts recognized the difficultyin proving that the specific defect which caused the injury could havebeen eliminated had the manufacturer exercised ordinary care. Basedupon that recognition, courts developed a new remedy - strict liabilityin tort for breach of implied warranty of fitness for ordinary use. Ohioadopted that remedy in Lonzrick .... The obvious advantage is thatplaintiff need only show that the defect existed at the time the productleft the manufacturer and that the defect was the proximate cause ofthe injury.23

The Ohio Supreme Court again addressed the relationship of res ipsato strict liability since the trial court had given a res ipsa charge to the juryeven though plaintiff had failed to establish any negligence and despitethe fact that the claim was founded on negligence rather than implied war-ranty. The court ruled that a res ipsa charge under the circumstances wasimproper since, if it were permitted, the distinction between strict liabilityand negligence would disappear in a product liability case." It was madeclear that regardless of how the strict liability doctrine was to be enunciated,the courts would maintain a distinction between this theory and negligencetheory and would not tolerate the use of res ipsa concepts in a strict liabilitysituation.

From its beginning, dating perhaps back to 1958, and with an earlychildhood period ending in 1965, the doctrine of strict liability reachedadolescence in 1966 and remained there for over a decade before reachingthe age of majority in 1977. With some sadness we must recognize thatthe court which nurtured the doctrine uprooted its effectiveness in thevery opinion in which the age of majority was reached. This uprooting,coupled with the effects of legislation now pending in the Ohio General

22 39 Ohio St. 2d 29, 313 N.E.2d 831 (1974).

23 Id. at 31, 313 N.E.2d at 833 (citations omitted) (emphasis added). A similarly convoluteddefinition is found in McDonald v. Ford Motor Co., 42 Ohio St. 2d 8, 10, 326 N.E.2d 252,253 (1975), "implied warranty, which is a form of strict liability in tort".24 39 Ohio St. 2d at 32, 313 N.E.2d at 834.

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Assembly,25 may well sound the practical, if not theoretical, death knell ofstrict liability in Ohio.

Temple v. Wean United, Inc.2" posed a virtually perfect fact patternfor clarification of the court's theory for recovery in a products liabilitysuit, since the court was reviewing a motion for summary judgment grantedto defendant and under the facts recovery had not been possible underany theory. 7 Plaintiff was operating a power punch press during the courseof her employment. As plaintiff was placing aluminum extrusions into theback die of the press, an unknown number of extrusions fell from thebolster plate in front of her onto the dual operating buttons. The resultwas the activation of the press and consequent amputation of plaintiff'sarms.

The machine was manufactured and sold in 1954 by Federal Machineand Welder Company, now Wean United, Inc., to a division of GeneralMotors. General Motors sold the machine to Turner Industries, which com-pany immediately sold it to plaintiff's employer, Superior Metal Products, Inc.Upon receipt of the press, Superior immediately made several modificationsin the machine, the most significant of which was to lower the location ofthe dual operating buttons from a position approximately shoulder highto a position approximately waist high. It was established that the machinecould not have been activated by the falling extrusions had the dual oper-ating buttons been positioned as they were prior to this modification. 8

25 Am. Sub. H.B. No. 319, 112th G.A. (1977-78). See also text accompanying notes 50-54intra.26 50 Ohio St. 2d 317, 364 N.E.2d 267 (1977).27 Plaintiff's suit was premised on the traditional triumvirate of negligence, implied war-ranty and strict liability in tort (in many cases the warranty assertions are express and im-plied). The opinion attempts to maintain a clear demarcation between negligence and strictliability. There is no need for it to maintain such a position as to implied warranty becausethe court's position is that implied warranty and strict liability are virtually indistinguish-able legal theories. The court is apparently unaware of the impact of its decision on thedesign defect area. In this case, a key assertion of the plaintiff was design defect as distinctfrom malfunction. The court makes no mention of the design defect in its analysis of strictliability although it is aware that malfunction is not involved. This omission may constitutea sub silentio disapproval of the strict liability theory in design cases, but this reading ishard to reconcile with the apparent intent of the court. Such a reading is consistent with theposition advanced by some writers and possibly by prior decisions. A fuller discussion ofthe design defect aspect is set forth in text accompanying notes 38-41 infra.28 The court noted that:

The evidence of record reveals that prior to the date of the accident Superior had acompany policy which specified that all power press activating buttons be located fac-ing upward, waist high, 24 inches apart. Pursuant to this policy, upon receipt of thepress, Superior altered the existing method of guarding by lowering the buttons, whichwere at that time shoulder high. Clearly, in relation to the danger of unintentional activa-tion, this alteration was a "substantial change" within the meaning of Section 402A(1) (b). Indeed, it is our conclusion that there was no original defect of any sort inthe punch press, and that, as a matter of law, Superior's alteration of the safety device,

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It was evident that there was no "defect" at the time of manufacture andsale, and recovery was not possible. The court however, aware of the con-fusion engendered in its prior descriptions of the applicable legal theories,firmly and concisely adopted the definition of strict liability in tort andapproved the text as set forth in the Restatement as well as indicating thatthe comments would assist analysis in the area of product liability:

Since Greenman was decided, the rule of the Restatement had beenadopted or approved by the vast majority of courts which have con-sidered it. Because there are virtually no distinctions between Ohio's"implied warranty in tort" theory and the Restatement version of strictliability in tort, and because the Restatement formulation, togetherwith its numerous illustrative comments, greatly facilitates analysis inthis area, we hereby approve Section 402A of the Restatement ofTorts 2d.29

Syllabus paragraph (1) consists of a verbatim statement of strictliability as set forth in 402A, and is thus clearly made a part of the lawof the State of Ohio. Applying the facts of the case to the doctrine of strictliability as now approved, the court found that there had been a substantialchange in the product's condition from the time of its initial sale and thattherefore the plaintiff could not recover. Furthermore, there was no dutyto warn. This was extended to speculative anticipation of how manufacturedcomponents, not in and of themselves dangerous or defective, can becomepotentially dangerous dependent upon the manner in which they are inte-grated into the original unit. Had the opinion ended here, it would havebeen a most satisfactory decision in which several goals were reached: first,a clear definition and acceptance of the doctrine of strict liability in tort;second, a clear analysis of the type of modification which would relieve amanufacturer of liability; third, a clear analysis of the proper parameters ofthe duty to warn as it relates to component parts.

However the opinion did not end on such a note. Instead, syllabusparagraph (5) sets forth a principle of law virtually unique to the State ofOhio: "Where an order of the Industrial Commission specifies that eithera fixed barrier guard or a two-hand tripping device is an acceptable methodof guarding a power press, a manufacturer is not negligent in designing apress which utilizes a two-hand tripping device."3 The body of the

coupled with the utilization of the press for the stamping of stock long enough tobridge the 24 inch gap between the buttons, was the sole responsible cause of the maim-ing of Mrs. Temple.

50 Ohio St. 2d at 323, 364 N.E.2d at 271 (1977).2 9

1d.

30 Id. at 318, 264 N.E.2d at 269.

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opinion makes clear that this portion of the syllabus raises the ex-istence of an Industrial Commission standard to a level of completedefense. To reach this aberrant conclusion the court first points out thatas indicated in Gosset v. Chrysler Corp.,"1 the manufacturer is under a dutyto use such reasonable care under the circumstances as to make his productsafe for the use for which it is intended. Such care does not mandate thatthe product be made accident-proof or foolproof. A similar standard wasenunciated in connection with the doctrine of liability for second collisioninjuries, i.e., crashworthiness, in a line of cases commencing with Larsenv. General Motors Corp.2 In Larsen the court declared that an automobilemanufacturer has no duty to make his product accident-proof or foolproof,but was under a duty to use such care in design as to avoid subjecting theuser to an unreasonable risk of injury in the event of a collision.

Perhaps recognizing that the general rule of Gosset and similar casescould impose the equivalent of absolute liability or force the role of insurerupon manufacturers, the court placed a limit on such potential by establishinga new and complete defense as a matter of law. Premised specifically uponthe "difficulty and open endedness inherent in passing judgment upon thereasonableness of a manufacturer's conscious design choices,""3 the courtdetermined it appropriate to look to statutory regulations. The IndustrialCommission Safety Code specifically approved the use of either a fixedbarrier guard or a two hand tripping device as proper in the constructionof a power press so as to prevent the hands or fingers from entering thedanger zone. The court states: "In view of this regulation... this courtholds that the question of whether or not the manufacturer was negligent innot providing fixed barrier guards should be answered, as a matter of law,in the negative.''

Although this ruling was directed to the claim premised upon negli-gence, and the court has consistently ruled that negligence is an actiondistinct from strict liability, it is hard to fathom the court's use of theindustrial regulation as being limited to negligence. Since such a rulingwould make clear that the design of the product was not defective in anegligence sense, it would be difficult to then rule that despite the validity of thedesign it somehow was sold "in a defective condition unreasonably dangerous

31 359 F.2d 84 (6th Cir. 1966).32 391 F.2d 495 (8th Cir. 1968). The use of this standard has led to considerable difficultyand may be inappropriate despite its current acceptance. See Hoenig, Understanding 'SecondCollision' Cases in New York: A Suggested Guide to Application of Bolm, 20 N.Y.L.F. 29(1974); Hoenig & Goetz, Rational Approach to Crashworthy Automobiles: The Need forJudicial Responsibility, 6 Sw. U. L. REv. 1 (1974); Hoenig & Werber, Automobile 'Crash-worthiness' An Untenable Doctrine, 20 CEv. ST. L. REv. 578 (1971).33 50 Ohio St. 2d 317, 326, 364 N.E.2d 267, 273.34 Id.

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to the user or consumer." In essence, the court has raised the use of thestate of the art defense to a new level. In the past, compliance with theindustrial state of the art was viewed as evidence of due care and the ab-sence of negligence, but it was not viewed as conclusive on the issue."The industrial safety standards, such as those established by the OhioIndustrial Commission, are essentially codifications of existing industrypractice and are invariably written only after extensive industrial input. Ifthe industry claims it cannot meet a specified standard, that standard oftenis not imposed. Anyone who has followed the debates of Congress and theDepartment of Transportation's efforts to impose safety standards for ve-hicles can recall ample illustrations of this problem.

If the premise is correct, that use of the industrial standard to negatenegligence as a matter of law will carry over to the determination of theexistence of a defect in a product for strict liability standards, it is hardto see the doctrine enunciated in Temple as anything but a retreat fromnecessary consumer protection. 6 To make matters worse, nothing in theestablished Safety Code or the enabling legislation indicates a desire thatthe standards set should be used as a complete defense to a product claim."

The court does not mention the possibility of federal standards meetingthe same goals and thus also becoming available as a defense. Since thecourt left this open and permitted the use of the government standard tolimit its powers to develop common law doctrine for the imposition ofliability, it is at least possible that a similar result could occur even in theface of legislation which clearly states that it is not intended to be inderogation of the common law, as is the case with the National Trafficand Motor Vehicle Safety Act of 1966.8 Should the court take this position,

35 See Witherspoon v. Haft, 157 Ohio St. 474, 106 N.E.2d 296 (1952); Morris v. ClevelandHockey Club, Inc., 157 Ohio St. 225, 105 N.E.2d 419 (1952); Mills v. City of Springfield,75 Ohio L. Abs. 150, 142 N.E.2d 859 (Ohio App. 1956); Spitler v. Montgomery Ward& Co., 70 Ohio L. Abs., 321, 128 N.E.2d 445 (Ohio App. 1954). See generally FRUMER &FRIEDMAN, PRODUCTS LIAnmlrrY, § 6 (1976); Note, The State of the Art Defense in StrictProducts Liability, 57 MARQ. L. REV. 651 (1974).36 A plaintiff's attorney might well consider filing a complaint without an allegation ofnegligence or dismissing such count prior to trial whenever a relevant statute would decidethe issue adversely to his client's interest. The effect of a directed verdict or jury chargealong the lines of Temple could devastate the remainder of plaintiff's case. Plaintiff mightalso gain a tactical advantage since the defendant's use of the standard will not be as effective..17 Although a significant number of cases fall within the parameters of the Safety Code'senabling legislation, OHIo REV. CODE ANN. §§ 4101.11, 4107.23 (Page 1976), none deal withthe manufacturer's adherence to code standards as conclusive evidence of non-negligence.Conversely, several indicated that a failure to meet code standards raised a jury questionas to negligence. See, e.g., Kuhn v. Cincinnati Traction Co., 109 Ohio St. 263, 142 N.E.370 (1924); Variety Iron and Steel Works Co. v. Poak, 89 Ohio St. 297, 106 N.E. 24(1914) (possibly negligence per se).38 15 U.S.C. 9H 1381-1410 (1970). Section 108 (c) of the Act, 15 U.S.C. § 1397 (c),expressly negatives any intention of Congress to preempt this field and leaves common lawdevelopment intact.

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it is possible to predict that auto safety will become a non-issue in Ohiocourts and we will subjugate our beliefs as to the need for safety standardsto those standards established by the federal government. Such a possibilityis awesome and the court should address itself to the question so as tonegate the premise propounded herein."

It is possible to view the court's action as both intelligent and consistentwith prior decisions if the distinction between malfunction and design defectis valid and if this was actually the basis of decision. If the court is applyingthe government standard to establish non-negligence in design, the Templedecision merely requires clarification. A product malfunction occurs whenthe product fails to function as it was designed to do and this failure isthe proximate cause of injury. Often this occurs simply because a componentpart fails, i.e., the machine breaks. A conscious design choice results in analleged defect when the product is manufactured in a specific way so asto perform a specific function, but something in that design raises a risk ofharm which could have been avoided had some other design been chosen.

Typical cases of design defect involve a failure to incorporate intothe product an additional or different safety device or the use of unnecessarilydangerous chemicals in household products. In such cases, product functionis not impaired and the product does precisely what it was designed to do.This is not to say that the product was designed to injure, although somepersons seem to think this is the case. Thus "crashworthiness" often in-cludes an issue of design choice, not product malfunction."°

In cases of malfunction the issue is generally simple in terms of tech-nology, evidence and jury understanding. A finding of liability in sucha case may have only minimal impact on continued manufacture and useof the product. A finding of liability premised on design defect can havean exceedingly detrimental effect on the continued manufacture or use ofthe product. The demands of a competitive system often require that amanufacturer base design decisions on a composite of marketing, cost andsafety factors. It is improper to raise the safety factor to a level which im-

9 Although awesome, the concept of federal preemption is not unprecedented and couldbe beneficial in the product safety field. If there is effective and comprehensive legislation,the resulting national uniformity would benefit both industry and consumer. Similarly, effectivestate regulation, where the concerned administrative agency intended its actions to havesuch sweeping effect, would be beneficial to all parties. The use of legislation to resolvethe problems of product safety may ultimately be the most signifficant method available.Provided that the concerned agencies retain their independence and demand that industrydo that which it is capable of doing, there would be no need for ad hoc judicial determi-nations of what was or was not proper at a given point in time. Since the courts do thiswith benefit of hindsight, there is an inherent unfairness to industry which would beobviated were a systematic legislative program established.40 See text accompanying notes 31, 32 supra.

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poses liability when an objectively supportable design nevertheless results ina possibly foreseeable, though not truly anticipated, injury. In light ofincreased liberality as to the admissibility of evidence, liability in suchcases will almost invariably be rested on benefit of hindsight. 1

It has been suggested, quite correctly, that in design defect cases thedoctrine of strict liability should not be applied since traditional negligenceconcepts will suffice. Such a limitation would lead to a more appropriatedivision of responsibility in connection with proofs at trial and would helpto eliminate spurious claims. Similarly, such a limitation will make theburden imposed upon defendants tolerable, without impeding imposition ofliability where there is fault. Such a position is consistent with the historicaldevelopment of the strict liability doctrine."

Although cases decided under Ohio law do not specifically make thistype of distinction, an analysis discloses that the failure to establish negli-gence in design choice was conclusive of the issues. The applicable standardis apparently one of negligence, despite the court's assertion that there needbe no negligence in a strict liability case. In four recent cases a judgmentor jury verdict in favor of the defendant was upheld. 3 In each of thesecases the plaintiff was proceeding on theories of negligence and strict lia-bility or analogous implied warranty concepts. As previously indicated, theTemple decision permitted no finding of strict liability premised on an in-tervening modification and no negligence in design premised on compliancewith an applicable government standard. The theories of negligence, war-ranty and strict liability are supposedly independent, but in Temple we findthat there is a correlation: no negligence, no strict liability. Admittedly thereasons for the two findings differ. If the simple equation, "no negligence =no strict liability," is truly founded on lack of negligence in design choice,the remaining recent cases must support the equation.

In Ball v. E. I. DuPont De Nemours & Co.," the plaintiff was injuredby the detonation of a blasting cap. The court of appeals affirmed the grantingof a directed verdict on the issue of strict liability and a defendant's verdict

41 See, e.g., Ault v. International Harvester Co., 13 Cal. 3d 113, 528 P.2d 1148, 117 Cal.Rptr. 812 (1974); Barry v. Manglass, 55 App. Div. 2d 1, 389 N.Y.S.2d 870 (1976);LaMonica v. Outboard Marine Corp., 48 Ohio App. 2d 43, 355 N.E.2d 533 (1976); FED. R.Evm. 407.42 See generally Henderson, Judicial Review of Manufacturers' Conscious Design Choices:The Limits of Adjudication, 73 COLUM. L. REv. 1531 (1973); Hoenig, Product Design andStrict Tort Liability: Is There a Better Approach?, 8 Sw. U. L. REv. 109 (1976).43 Ball v. E. I. DuPont DeNemours & Co., 519 F.2d 715 (6th Cir. 1975); Strimbu v.American Chain & Cable Co., 516 F.2d 781 (6th Cir. 1975); Temple v. Wean United,Inc., 50 Ohio St. 2d 8, 326 N.E.2d 252 (1977); Gast v. Sears Roebuck and Co., 39 OhioSt. 2d 29, 313 N.E.2d 831 (1974).44 519 F.2d 715 (6th Cir. 1975). See also cases cited note 43 supra.

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by the jury on the negligence issue. Although this case is distinguishable,since the negligence went to failure to warn instead of the design defect,there is some support to the premise suggested. Further support is seen inStrimbu v. American Chain & Cable Co., 5 where the plaintiff was injuredwhen a hoist manufactured by defendant was attached to a dumbwaiter inplaintiff's home. It was alleged that the defective design of the hoist per-mitted it to fall and injure plaintiff. The district court entered a directedverdict against plaintiff on the counts of negligence and strict liability.The court of appeals affirmed. Finally, the decision in Gast v. Sears Roebuckand Co."' also centered upon asserted negligence and strict liability, thoughhere plaintiff framed the issue as one of implied warranty. The trial courtdismissed the implied warranty claim and no appeal was based on thatissue. However, an appeal was taken from the jury verdict based on theissue of non-negligence. The Supreme Court of Ohio affirmed. The patternis quite clear: unless negligence is established, there is little likelihood ofrecovery on strict liability grounds under Ohio decisions.

Three recent cases in which liability was imposed also support the pre-mise suggested. State Auto Mutual Insurance Co. v. Chrysler Co." involvedclaims premised on strict liability arising from an accident caused by an al-legedly defective brake hose. Here the defect was directly concerned with mal-function, but due to the newness of the product, a malfunction can properlybe viewed as a function of design choice. The plaintiff sought to infer theexistence of a defect through the equivalent of res ipsa loquitur, supported byrather tenuous expert testimony. Plaintiff was able to convince the courtthat a directed verdict was not appropriate and that a proper issue as tostrict liability was raised. Although the court reiterated that no negligenceneed be shown, it is quite clear that the res ipsa doctrine was one basisfor finding the existence of a defect, even though this alone was inadequateunder the circumstances." Res ipsa provides an inference of negligence, notan inference of defect. In this case, the actual proof supports the theorythat negligence as to defect is an essential element for strict liability recoveryin Ohio regardless of the court's assertions to the contrary.

Anton v. Ford Motor Co."9 similarly involved a case of defect, thistime in the design of a motor vehicle gasoline tank system in the contextof a product suit. The theories of the parties were not made quite clear,but the court, in discussing the burden upon the plaintiff, relied on Lonzrick

45 516 F.2d 781 (6th Cir. 1975). See also cases cited note 43 supra.46,39 Ohio St. 2d 29, 313 N.E.2d 831 (1974).47 36 Ohio St. 2d 151, 304 N.E.2d 891 (1973).48 Id. at 155, 304 N.E.2d at 895 (1973).49 400 F. Supp. 1270 (S.D. Ohio 1975).

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to assert that plaintiff would have to establish that there was a defect.5"The opinion did not state that to do so would necessitate a showing ofnegligence, but on the facts presented, it appears that in the absence ofnegligence it would have been impossible for plaintiff to sustain his burdenof proof.

Finally, in Drayton v. Jiflee Chemical Corp.,5" a judgment in favor ofplaintiff was upheld on theories of negligence, warranty and strict liability.The plaintiff proved negligence, and in holding that recovery was per-missible under strict liability, the court specifically referred to the fact thatit had already been determined that the product caused injury due toa negligent design defect, viz, the chemical content of the "Liquid-plumr"was improper.5"

Recent Ohio cases thus make it clear that to establish the existenceof a defect it is essential to establish some degree of negligence on thepart of the manufacturer. Unless this can be shown, the action for strictliability will fail. Clearly such a broad limitation is not consistent with thetheory of strict liability. Moreover, if state safety standards can be usedto establish an absence of negligence as a matter of law, there will be nobenefits accruing to plaintiffs in a great number of cases where such benefitswould normally flow from the establishment of strict liability theory. Onthe other hand, if these decisions can be read to establish the position thatstrict liability in tort will not be imposed for design defect and that negli-gence must be established in such cases, they are consistent with the doctrineof strict liability. Such a reading justifies the decisions without emasculatingthe doctrine and will permit recovery in all cases of actual fault or failureto prevent malfunction.

The need for the court to reconsider the ramifications of Temple iseven more pressing in light of pending legislation." Proposed Ohio RevisedCode sections 2305.33 (A) and (B) would establish rebuttable presump-tions that a product was or was not defective dependent upon its compliancewith federal or state statutes, standards or rules." This provision has little

50ld. at 1281.51 395 F. Supp. 1081 (N.D. Ohio 1975).52 id. at 1088.5 5 See Am. Sub. H.B. No. 319, § 1, 112th G.A. (1977-78).54 The proposed legislation, id., contains the following language:

§ 2305.33 (A) In any action for bodily injury, death, or injuring real or personalproperty caused by a product, evidence that such product, at the time of its manu-facture, complied with federal or state statutes, standards, or rules regarding productdesign, manufacture, or testing, creates a rebuttable presumption that the product,in any respect that is relevant to the action and as to which there was compliancewith such statutes, standards, or rules, was not defective.

(B) In any action for bodily injury, death, or injuring real or personal property

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practical effect in the determination of liability in product suits. At thepresent time, compliance or non-compliance with such standards is evidenceof negligence or non-negligence and essentially is a basis for an inferenceof liability, just as compliance or non-compliance with industrial stateof the art gives rise to legitimate inferences. By raising such inferencesto the status of rebuttable presumptions, the legislation will perhaps havea minimal impact on the parties' burden of proof, but no significant changein the imposition or non-imposition of liability.

The decision in Temple far exceeds the rebuttable presumption stand-ard proposed in the legislation and establishes the equivalent of a conclusivepresumption. The term conclusive presumption is actually a misnomer,meaning in such cases, the creation of an absolute defense. Framed a littledifferently, a manufacturer who must meet federal or state standards toproduce his product will be absolutely insulated from liability in any casein which a relevant standard can be shown to the court, regardless ofchanges in the state of the art or how outmoded the standard. Such a posi-tion is untenable. The court should reconsider this aspect of the Templedecision and make clear that it seeks to establish only a rebuttable pre-sumption. The rebuttable presumption standard is practical and can readilybe applied during judicial proceedings. Such a standard will assist manu-facturers by providing a reasonable method to defend strict liability casesas well as permitting a shift in the burden of proof to the plaintiff, andthe plaintiff will be subject to a directed verdict if he cannot sustain theburden. The standard proposed in the legislation will adequately preventthe subversion of strict liability into absolute liability, and there is no needfor the judicial overkill evident in Temple.

It is also important to note that compliance with government standardsas set forth in the legislation will effect proof of the existence of defect,and thus will effectively negate or support claims in negligence, warrantyand strict liability. As indicated above, it is the writer's belief that the Templecase will have a similar, even more drastic effect upon all theories of liabilitydespite the fact that the court did not necessarily desire this result.

At least one other element of the proposed legislation will have animportant effect upon utilization of the doctrine of strict liability in tortor any other theory presented to impose liability in a product suit. Thelegislation proposes amendments to Ohio Revised Code section 2305.10

caused by a product, evidence that the product, at the time of its manufacture, didnot comply with federal or state statutes, standards, or rules regarding product design,manufacture, or testing creates a rebuttable presumption that the product, in anyrespect that is relevant to the action and as to which there was not compliance withsuch statutes, standards, or rules, was defective.

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which would impose a statute of limitations on all claims for injuries againstmanufacturers or sellers of products that occur ten years after the productwas first sold or otherwise delivered.55 In conjunction with the court's utiliza-tion of state safety standards to limit liability, this provision will effectivelydefeat imposition of liability in a significant proportion of possible cases.The limitation imposed is premised on a number of factors, includinginsurance rates, an inference that a product in use for a substantial numberof years is safe, difficulties in connection with the liability of successor cor-porations,56 and perhaps simply a reaction to the apparently substantialincrease in products liability litigation.

The concept of a special statute of limitations in product suits, evenone which bars recovery before the injury has arisen, is a significant onewhich the writer believes to be well founded within appropriate limits.The proposed Ohio statute has no such appropriate limits. If we are toprotect adequately the consumers and users of many products, we mustfocus more directly upon the dangers to be avoided as they relate to bothmanufacturers and consumers or users. The manufacturer is quite properlyafraid that the bringing of claims asserting defects in older products isencouraged under present law. Even defense costs in such casescan bankrupt smaller individual or corporate manufacturers. The Templecase is a fine example: the case was appealed to the Ohio Supreme Courtat considerable expense, and concerned a product manufactured over twentyyears prior to the injury sued upon. The manufacturer was vindicated, buta less wealthy or non-insured defendant might have settled or been forcedout of business. A similar situation led to imposition of liability for analleged defect in the gear shift selector knob of a motor vehicle almost twentyyears old."

On the other hand, the user or consumer of a product, especially onefor use in industry, has the right to expect that the product is safe for itsentire anticipated life. There is no real difficulty in framing a statute pre-mised on the belief that a product, especially a machine, which has func-

55 The statute of limitations contained in the bill, id., reads as follows:§ 2305.10 (B) Expect as provided in division (D) of this section, no action in tortfor bodily injury, death, or injuring real or personal property shall be brought againsta manufacturer or seller of a defective product for an injury that occurs after thelater of the following periods:

(1) Ten years after the product was first sold, or was otherwise first delivered, for useor consumption ...

5 See, e.g., Knapp v. North Am. Rockwell Corp., 506 F.2d 361 (3d Cir. 1974), cert.denied, 421 U.S. 965 (1975); Cyr v. B. Offen & Co. 501 F.2d 1145 (Ist Cir. 1974); Chad-wick v. Air Reduction Co., 239 F. Supp. 247 (N.D. Ohio 1965); Note, Expanding theProducts Liability of Successor Corporations, 27 HAsTINGs L. J. 1305 (1975).87 See Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969).

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tioned safely for ten years is safe, but the proposed statute does not incor-porate a provision making it applicable only in the event that the machinehas a substantially good safety record. Furthermore, even a machine whichhas such a record may never have been used in a way which necessitatedthe operation of its fail-safe device or other safety features. The typicalhomeowner has never checked the automatic cutoff device in his gas furnaceand probably has no idea of how to do so. If the cut-off has had no needto work for the ten year period, but is needed thereafter, recovery shouldnot be barred in the event of a failure and consequent harm. The pendinglegislation would improperly bar recovery in such a case.

To be fair, the statute must take into account whether the injury wascaused by malfunction of a part, especially a safety device, which had notpreviously been called upon to function. Such a standard would precludeimposition of liability in a significant number of cases while providing ade-quate protection to the user or consumer of the machine. Liability would beimposed where a specific safety device malfunction is involved and thatelement of the machine's use had not previously come into play.

The judicial adoption of the doctrine of strict liability came of agein Ohio in Temple v. Wean United. If the doctrine is to be meaningfullyutilized in the future two steps must be taken: first, the court must retreatfrom the conclusive presumption standard established in Temple; and second,the legislature must redefine its proposed statute of limitations to take intoaccount the competing interests which must be served.

If this is not done, particularly if both Temple and the proposed legis-lation stand, the likelihood of recovery for injuries caused by defective andunreasonably dangerous products will be substantially reduced. The legiti-mate goals of the court and expectations of the public will be defeated forno valid purpose. If the court believes that strict liability is not a properbasis for recovery and there is authority for such a view, then it shouldoverrule its entire line of cases from Lonzrick through Temple. To permitsuch an overruling by default or oversight is ludicrous.

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